New York Caselaw: New York courts are still developing the law as it applies to electronically stored information. Generally, there are numerous legal issues associated with the use of email and other forms of electronically stored data.

One such issue is an employee’s right to privacy when sending personal email from work. Courts often look at whether a workplace has a written email policy when determining the level of privacy to give to an employee’s email. If there is an email policy, courts will look at where it is posted and whether it was sent to each employee. Even if an employee does not sign and acknowledge that they received or read the policy, courts may still be able to find that an employee has no privacy rights if the employee should have known about the policy. Even emails to an employee’s personal attorney from a work computer may not be protected against an employer’s perusal, and therefore the employee may have waived the attorney-client privilege as it relates to that communication. Courts will also look to the language of an employer’s email policy to determine if the employer has the right to review and/or prohibit such email communications.

Under the circumstances, it is imperative that every business consult with an attorney prior to creating an email and computer usage policy and properly inform employees of such regulations. A well drafted email and computer usage policy may provide an employer with an advantage in litigation and may legally minimize employee misconduct. On the other hand, it is important that employees understand that emails sent from work may not be private and therefore may become evidence in a lawsuit. For more advice on an employee’s privacy rights, an inquisitive employee should consult a qualified attorney.

Comments/Questions: ljm@gdnlaw.com

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